Stop Watching Us video courtesty of the Electronic Frontier Foundation.
On Saturday, thousands of people are expected to rally in Washington, DC, to protest the National Security Agency’s surveillance programs that, according to documents released by Edward Snowden, collect data from American citizens. Saturday’s rally comes at a key moment, as the Senate Intelligence Committee is expected to take up legislation to revise the NSA’s spying authority next week.
It’s clear that reform is needed—but less so that it will come out of the Intelligence Committee. Instead, committee chairwoman Dianne Feinstein wants to make the NSA’s bulk collection of phone records permanent. In an op-ed published in USA Today on Monday, the California senator called the program “legal,” “effective in helping to prevent terrorist plots,” and claimed it was “not surveillance.” She argued that the metadata program should continue, and said her bill would “codify existing procedures into law.”
Feinstein has made it clear in public comments that her main concern is the public’s “misperception” of the program, not the NSA’s activities or the authority of the Foreign Intelligence Surveillance Court, which authorizes the agency’s surveillance requests. To that end her legislation is targeted primarily at increasing transparency in the agency. It would require the NSA to release an annual report, clarify the benchmark of “reasonable, articulable suspicion” the agency has to meet in order to monitor an individual’s communications and Senate confirmation of the NSA’s director—needed revisions, but the most profound impact of her legislation would be to formally sanction and normalize the collection of vast troves of data about American citizens.
Senator Ron Wyden, Feinstein’s colleague on the Intelligence Committee, made a less-than-subtle jab at the superficiality of her proposal in remarks at the Cato Institute earlier this month. Wyden warned of a “business-as-usual brigade” that will “try mightily to fog up the surveillance debate and convince Congress and the public that the real problem here is not overly intrusive, constitutionally flawed domestic surveillance, but sensationalistic media reporting.” He continued: “their endgame is ensuring that any surveillance reforms are only skin deep.”
The Oregon senator, along with Republican Ron Paul and Democrats Mark Udall and Richard Blumenthal, introduced a comprehensive reform proposal last month that would have a more profound effect on the NSA’s domestic surveillance activities. Their bill would prohibit the collection of phone records under section 215 of the Patriot Act, close loopholes in section 702 of the FISA Amendment Act to ensure that domestic communications are not swept up along with foreigners’ data, and reform the Foreign Intelligence Surveillance Court to require declassification of major opinions and to install an independent civil liberties advocate to argue against the government in critical cases.
Senator Patrick Leahy, chairman of the Judiciary Committee, has also endorsed a sharper curtailment of the NSA’s authority under section 215, as well as the establishment of a special advocate. But Feinstein has vowed to fight the restrictions on metadata collection called for by Leahy and Wyden. “I will do everything I can to prevent this program from being canceled,” she said at a hearing in early October.
The crux of the disagreement comes down to efficacy. Feinstein has suggested that metadata analysis could have prevented the attacks of September 11, 2001, and that it is critical to ongoing counterterrorism operations. According to her USA Today op-ed, the program has “played a role in stopping roughly a dozen terror plots.” This language is a significant step back: in a previous op-ed, Feinstein parroted the NSA’s claim that “fifty-four terrorist events have been interrupted” by metadata collection and other programs, a wildly inflated figure that has been thoroughly debunked. So far, officials have publicly identified only four cases in which the controversial surveillance programs played a role, and in none of them is it clear that the section 215 and section 702 authorities were essential. Proponents of deeper reform like Wyden and Leahy have argued that the minimal national security value of the program does not justify the unprecedented intrusion into Americans’ private lives.
It is exceedingly difficult for the public to weigh these competing claims. Although various congressional committees have held hearings since the documents leaked by Snowden began appearing in the press, the hearings have been far less rigorous and illuminating than those conducted by the Church Committee, which formed in the 1970s after Seymour Hersh reported that the CIA was spying on Americans. The Church Committee invited testimony from hundreds of witnesses and uncovered a slew of abuses in the intelligence community. This time, the closest thing to an airing of intelligence laundry the public has heard are Wyden’s pointed questions, such as his continued insistence that officials give a full answer regarding the use of geolocation data.
Congress is not expected to challenge the NSA’s activities overseas, which provoked a pair of vexed long-distance phone calls to the Oval Office this week. French president François Hollande called Obama on Monday, concerned about a report in Le Monde that the NSA snooped on the phone calls and e-mails of French citizens, and on Thursday, German Chancellor Angela Merkel called to express her anger over revelations that the NSA had monitored her cellphone. The White House did not fully refute her charge, saying only the US intelligence was not currently listening in on her calls, and would not in the future.
The apparent impasse between top Democrats in the Senate makes a challenging context for reform. But that was the case when Republican Representative Justin Amash’s attempt to defund the bulk data collection program nearly prevailed in the House in July, indicating broad support for checking the NSA’s surveillance authorities. Expect similar bipartisanship at Saturday’s rally, which was organized by a coalition called Stop Watching Us that encompasses a political spectrum from libertarians to greens. As Wyden said earlier this month, reform “is going to take a groundswell of support from lots of Americans across the political spectrum…communicating that business as usual is no longer OK, and they won’t buy the argument that liberty and security are mutually exclusive.”
The rally will take place on Saturday, October 26 at noon, beginning at Union Station and ending on the National Mall at 3rd Street and Madison Drive NW, where a stage will be set up for speakers and performers.